Illegal Migration Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

Finally, the Delegated Powers and Regulatory Reform Committee’s report says that the procedures of the SI that are to come, the regulations, should be done by the positive procedure and not the negative resolution procedure which has been adopted. I would be grateful if the Minister said that the Government are considering that matter. In the end, what steps are the Government taking to ensure that individuals who are vulnerable and cannot be safely detained will be swiftly identified by appropriately qualified staff and released, with appropriate safeguards in place, following the removal of currently available legal challenge? Of course, we expect to see the Home Secretary’s risk assessment in the impact assessment which we understand is to follow.

[Lord Anderson of Ipswich (CB)]

My Lords, I would like to accept the invitation of the noble Lord, Lord German, as another lawyer, to address the Hardial Singh principles and habeas corpus, but since, on my reading of the Bill, they arise under Clauses 11 and 12 respectively, I think it might be best to reserve that treat for another day. I do have a question about Clause 10, which I candidly admit I do not find the easiest to understand. The Bar Council, in its briefing prepared by immigration practitioners far more expert than me, states that the powers already exist to detain any individual who is suspected to be subject to the Clause 2 removal duty, that Clause 10 does not provide for any additional persons to be detained, and that the purpose of the clause is simply to remove existing protections for unaccompanied minors, families and pregnant women. Is there any more to it than that?

[Baroness Mobarik (Con)]

My Lords, I shall speak to Amendments 59, 63, 64 and 67 standing in my name. I am immensely grateful to my noble friends Lady Helic and Lord Bourne of Aberystwyth and the right reverend Prelate the Bishop of Durham for adding their names to these amendments. I am also extremely grateful to the many children’s organisations that sent invaluable briefings and gave clarity on the subject. I refer noble Lords to the relevant interests in my name in the register. 

The words “detention” and “children” have no place in the same sentence. In the case of this Bill, it can also mean the possibility of indefinite detention, as proposed by the Government. In 2010, the organisation Medical Justice coined the term “state-sponsored cruelty” in relation to children in immigration detention. Its reports highlighted the great calamity being inflicted on thousands of innocent children, with lasting and detrimental consequences, including leaving them traumatised and suicidal. This led to a deep conviction across the political spectrum that such practices were inherently wrong and that a better, more humanitarian approach had to be taken. A pledge was given in 2010 by someone seeking the office of Prime Minister—David Cameron. He pledged that, if elected as Prime Minister, child detention would end. He was true to his word, and it became part of the coalition’s programme for Government in 2010, with policy changed as soon as 2011. With the Immigration Act 2014, the routine detention of children came to an end. That was progress. It was, as one would expect, a humanitarian response to an unacceptable and cruel practice. It is therefore with some dismay and disbelief that we are seeing attempts to reverse the progress made. Almost a decade on, we are discussing the reintroduction of those measures in an even more draconian form.

This Bill creates powers to detain en masse those who arrive in the UK without permission, on or after 7 March 2023, because they are not coming directly from a country where their life and liberty are threatened. Fleeing war-torn Syria but crossing through, for example, Belgium disqualifies them. As mentioned many times, there are no legal routes to the UK for most of those seeking asylum here. Of those coming, thousands of children could face detention. This is not a random statement but one based on the Refugee Council’s careful analysis in its impact assessment of the Bill. The exact figures are available in its report, but over a three-year period it equates to around 13,000 to 15,000 children in detention per annum. We are talking about babies, toddlers, children who are victims of child trafficking, unaccompanied children and children with families—defenceless little people, many of whom have not yet learned to speak and others who may be of speaking age but have no English language. They are detained, and with no legally defined time limit to their detention. They are detained anywhere,

“in any place that the Secretary of State considers appropriate”,

and without the possibility of bail for 28 days. Needless to say, children’s and refugee organisations are aghast at what is being proposed. They are not alone. Many of us across all Benches in this House and the other place feel the same.

Let us stop and think for a moment that perhaps it is not the intention of the Home Secretary to lock up thousands of children. Perhaps we can put this down to the lack of an economic impact assessment or child’s rights impact assessment conducted by the Home Office itself. If that is the case, now is the opportunity, in Committee in this House, for my noble friend the Minister to reconsider what is being proposed. Of course it is understood that there will inevitably be very specific and limited occasions when children are detained, but the existing legislation already gives parameters for this. That is why I propose amendments to Clause 10, to retain the existing time limits of 24 hours in detention and with safeguards for unaccompanied children. Amendments on those who are with families seek to retain existing time limits so that they can be detained only for up to 72 hours, or not more than seven days where detention is personally authorised by a Minister. Importantly, this should be in short-term holding facilities or pre-departure accommodation.

Existing legislation on the detention of children, as under the Immigration Act 2014, is already in place. I ask only that the status quo be maintained. The Home Secretary may argue that by not detaining children we are creating another pull factor, but the evidence shows that there was no significant increase in the number of children seeking asylum once routine detention ended in 2011.

The question then is what the intention of the Government is if, as Prime Minister Sunak says:

“The intention of this part of the policy objective is not to detain children”.


We were given reassurances by the Minister during the Commons Report stage on 26 April that,

“we do not want to detain children. We will do so only in the most exceptional circumstances”.

There was also assurance from the Minister that the time limits

“will be as short as practically possible”.—[Official Report, Commons, 26/4/23; col. 837.]

However, these tests of “most exceptional circumstances” and

“as short as practically possible”

cannot be found in the Bill. All that can be found following the Government’s amendment is a delegated power for the Home Secretary to make regulations under the negative procedure that specify circumstances for the detention of unaccompanied children. There is also a discretionary power for the Home Secretary to make regulations that specify time limits. There is no clarification in the Bill as to the length of the time limits for detention or to which unaccompanied children they might apply, or how discretion might be exercised. Moreover, the regulations may or may not specify time limits for unaccompanied children. We have no assurance in the Bill that they will. Either way, they will do nothing for children and families.

I understood from my noble friend the Minister that later in the Bill’s passage the Government propose to

“set out the new timescale under which children may be detained for the purposes of removal without judicial oversight”.—[Official Report, 10/5/23; col. 1783.]

I must ask for clarification from my noble friend. If the Government truly wish to detain children for as short as practically possible, why are they disapplying the 2014 safeguards to children affected by this Bill? These safeguards were put in place by a Conservative Prime Minister and a Conservative Home Secretary.

Given this late stage in the Bill’s passage, when do the Government propose to set out these new timescales in the Bill, and what will they be? What are the circumstances in which unaccompanied children would be detained and why can these “most exceptional circumstances” not be stated on the face of the Bill and be open to full scrutiny during its passage? Will those timescales in regulations be an absolute time limit for the detention of children, or merely a timescale for judicial oversight of that detention? As a country in which the rule of law is a pillar of our constitution, can we detain children without judicial oversight? I presume detention is for the purposes of removal but would like clarification on whether the Government are proposing child detention for other purposes. If so, can the legal basis for such detention be explained?

Verbal reassurance is completely inadequate. I am no expert but I understand that this is not the way that laws are made. Laws must be much more firmly established. They cannot just fluctuate depending on which Home Secretary is in the driving seat; that is surely a dangerous precedent. Amendments 59, 63, 64 and 67 seek to place our current safeguards for the detention of children in the Bill, so that children impacted by it need not rely on mere verbal assurance. I understand that the issue of illegal migration is complex and requires a deterrent factor so that those who genuinely qualify can be identified, and that it requires a genuine solution, but I think most here would agree that the solution being proposed is not the right one on so many levels.

We are speaking about defenceless children. I say to noble Lords that it may be difficult for us to think back to our six year-old selves, so let us think about our children or grandchildren, who have neither the physical strength to defend themselves nor the verbal sophistication. We have a moral obligation to ensure that we protect the rights of these most vulnerable human beings.

Illegal Migration Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, Amendment 19A is on modern slavery. I will speak to a series of my other amendments relating to Clauses 4 and 21. I am grateful to the noble Baroness, Lady Hamwee, and my noble friend Lord Bach for their support.

I think we are all aware that modern slavery is a brutal crime involving sophisticated criminal networks buying and selling people for profit. Victims of this appalling crime may be forced to enter the UK illegally, coerced, deceived and forced against their will, with their identity and decision-making powers stripped away. If left unamended, the Bill would see victims punished for crimes committed by the perpetrators, deported or held in detention centres, exacerbating pre-existing traumas.

In the past 12 years, organisations such as Hestia—the leading modern slavery charity in the UK—to which I pay great tribute, have supported victims via the modern slavery victim care contract. In that time, these organisations have supported over 18,000 victims of modern slavery. Survivors have been exploited for profit by criminals often operating as part of organised networks, both in the UK and internationally. The Bill will do incredible damage to those efforts.

Clause 4 applies the Bill’s provisions to people who claim to be victims of slavery or human trafficking, or those who have made an application for judicial review in relation to their removal from the UK under the Bill. Clause 21 relates to the Council of Europe Convention on Action against Trafficking in Human Beings, which provides that, once there are reasonable grounds to believe that a person is a victim of trafficking, states have certain obligations to that person. Under the Bill’s provisions, where a protection or human rights claim falls within subsection (5), it will be declared inadmissible by the Secretary of State and will not be considered in the UK.

Were the Bill to come into effect without any provisions to protect victims from the duty to remove that is set out in Clause 4, many of these survivors would be denied the opportunity to rebuild their lives and reclaim their autonomy, based purely on their route of entry. This would also apply in circumstances of trafficking, where individuals have been forced to enter the country illegally. The Bill will do nothing to break cycles of exploitation or help people to break free of modern slavery. Instead, it will feed the criminal networks that profit from the lives of vulnerable people, and it will undo the great work of the Modern Slavery Act.

Noble Lords will have received a briefing from Justice about its significant concerns that proposals to deport potential victims of modern slavery and human trafficking, without properly considering their claim, are incompatible with Article 4 of the ECHR and the ECAT. The Government say that there will be protections for those supporting criminal investigations and proceedings, but even those limited protections have been watered down in late-stage government amendments in the Commons. Clauses 21(5) and 28 require the Home Secretary to assume that an individual can co-operate with criminal proceedings from abroad, unless there are “compelling circumstances”. But, as Justice says, this is troubling because individuals with vulnerabilities are likely to struggle to co-operate with criminal proceedings from abroad. It faces a further presumption in favour of deporting potential victims of trafficking and modern slavery.

As the previous Independent Anti-Slavery Commissioner said during the Nationality and Borders Act 2022 debate, providing a sufficient recovery and reflection period is often essential to enable potential witnesses to co-operate with criminal proceedings—therefore, limiting such support

“will severely limit our ability to convict perpetrators and dismantle organised crime groups”.

We discussed this at Second Reading, when the Minister claimed that

“The modern slavery clauses are fundamentally about preventing dangerous and illegal crossings that pose a threat to public order … the national referral mechanism offers world-leading protections to victims of modern slavery, and we must be alert to the risk that these protections will be used to frustrate removal action. Last year, 17,000 referrals took on average 543 days to reach a conclusive-grounds decision, making modern slavery protections susceptible to misuse”.


He argued:

“The NRM referral rate for people arriving in the UK on small boats and being detained for return has risen from 6% of detentions ending in 2019—that is, 50 people—to 73% in 2021 … Modern slavery laws are, therefore, an inextricable part of an immigration system that is open to being misused in order to block removals”.—[Official Report, 10/5/23; col. 1923.]


That is surely flawed logic. As Justice says, it is the Home Office-approved first responders who refer individuals to the competent authority if there are suspicions that someone is a victim of trafficking or modern slavery. Some 90% of the competent authority’s decisions last year were positive—in other words, decisions that there were reasonable grounds that someone was a victim of trafficking and modern slavery. Some 91% of conclusive grounds decisions were also positive, so where is the evidence that the system is being abused? Surely the Home Office’s own data highlights the overwhelming majority of credible victims of trafficking and modern slavery. As Theresa May made clear at Second Reading in the other place:

“The Home Office knows that the Bill means that genuine victims of modern slavery will be denied support”.—[Official Report, Commons, 13/3/23; col. 593.]


Furthermore, by closing the route to safety and support, the Bill risks strengthening the hands of trafficking networks. Traffickers keep people under their control with threats that they will not receive help if they reach out to the authorities. The Bill will substantiate that claim and further dissuade survivors from coming forward. We know that successful prosecutions of traffickers rely on the testimony and co-operation of those whom they exploit. As it stands, the Bill would have a devastating impact on survivors of modern slavery and human trafficking, offering them no recourse for support or protection, removing them from the country, leaving them entirely unsupported and leaving criminal gangs and traffickers unchecked.

My amendments first seek to remove the inclusion of people who claim to be victims of slavery or human trafficking from the provision in Clause 4 under which the Secretary of State must declare the claim inadmissible. My amendments to Clause 21 seek to amend the Bill so that a person who is in the process of being referred by a first responder to a competent authority, who awaits its reasonable grounds decision, who receives a positive reasonable grounds decision, who has a positive conclusive grounds decision or who is challenging a negative reasonable grounds or conclusive grounds decision may remain within the main referral system in the UK and subsequently receive modern slavery support, subject to Section 50A of the Modern Slavery Act, which includes protections from being removed.

These amendments essentially seek to ensure that potential and recognised victims of trafficking will not be detained or removed before they get the opportunity to submit an application to the NRM and have it duly considered. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I sat out the Second Reading debate in favour of a meeting of the Constitution Committee, in which we discussed our draft report on the Bill. That report is no substitute for the report of the Joint Committee on Human Rights—which I, for one, await with impatience—although I hope that it does deserve study. It discusses, in particular, the remarkable variety in the Bill of what might be called ouster clauses. Among them is Clause 4(2), which is the subject of Amendment 21, in the name of my noble and learned friend Lord Hope of Craighead, who cannot be here today, and to which I have added my name.

Some ouster clauses are aimed at restricting appeals or reviews from the decisions of a legally qualified tribunal. Examples include Clauses 49 and 51, which appear to be modelled on Section 2 of the Judicial Review and Courts Act 2022. The Supreme Court’s decision in the Privacy International case concerned an ouster of that nature.

More fundamental in their scope are the ousters in Clauses 4, 12 and 55. They bite not on claims that have already been adjudicated by tribunals but on claims that have never been adjudicated by any court or tribunal—and, in the case of Clause 4, any claim to the effect that removal from this country would be contrary not only to our laws against slavery and human trafficking, as we have just heard, but to the refugee convention, the Human Rights Act and the principles applied by the courts on judicial review. Such claims can be pursued, if at all—I am mindful of the jurisdictional limitations on the Human Rights Act—only after removal from the United Kingdom.

Through the kind offices of the Bar Council, I spoke this morning to a number of immigration law practitioners. They told me that so-called bring-backs, historically, have been vanishingly rare. Indeed, they are measurable in single figures. These are people who win their cases from abroad and then see those judgments implemented in the sense that they are brought back. Pursuing such a claim from out of country seems, for most people, to be a remedy which, in the time-honoured phrase, is not practical and effective but theoretical and illusory.

Clause 4 is supported by two buttresses: Clause 52, which prevents our courts issuing interim measures to prevent or delay removal; and Clause 53, which, if passed into law, will give parliamentary authority to Ministers to disregard interim measures issued by the European Court of Human Rights. A final nail is hammered into the coffin of judicial review by government Amendment 25A, which was debated in the previous group.

The Minister will no doubt say that the effect of the Clause 4 ouster is mitigated by the new suspensive claims provided for by Clauses 37 to 51 to deal with cases of serious harm and factual error. That is right, but only up to a point. The problem with those clauses is not only the punishing time limits and evidential requirements proposed in the Bill but their limited scope of application. For example, they afford no scope to challenge removal on slavery and human trafficking grounds, on private and family life grounds, or for the breach of elementary legal principles, such as prejudging and procedural error.

As my noble and learned friend Lord Brown of Eaton-under-Heywood referred to at Second Reading, the difficulty we face as a revising Chamber is that this degradation of existing judicial powers to keep the Executive in check is a feature of this legislation and not a bug. The Government’s theory of deterrence is based, in significant part, on the neutering of the courts. No doubt we will have to decide on Report whether we think that the objectives of the Bill, and the likelihood of achieving them, are enough to justify such a significant rebalancing of powers. If we think that they are not, we will have to decide whether to try to reverse the ousters in Clause 4 or to work with the grain of the Bill, however unpalatable we may find it, and seek to increase the range and feasibility of the new suspensive claims. In any event, it may not be controversial, but, in the words of a unanimous Constitution Committee:

“The cumulative impact of the ouster and partial ouster provisions in the Bill gives rise to very considerable constitutional implications”.


I wonder whether the Minister agrees.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I will come back to the noble Lord, Lord Purvis, at the end. I can confirm that removing this incentive is compliant with our international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings—ECAT. Indeed, ECAT envisages that the recovery period should be withheld from potential victims of trafficking on grounds of public order. There is a clear and unprecedented threat to public order through the loss of lives and the pressure on public services that illegal entry to the UK is causing. I again remind noble Lords that the number of small boat crossings has risen from 8,500 in 2020 to over 45,000 last year. We will have a fuller debate in respect of the modern slavery provisions when we reach Clauses 21 to 28 in Committee, but I cannot agree to the noble Lord’s proposition that the foundation of those provisions in subsection (1)(c) be removed from the Bill.

Amendment 20, spoken to by the noble Lord, Lord Carlile, seeks to strike out subsection (1)(d), the effect of which would be to enable any judicial review to put a block on removal until the legal proceedings had been concluded. It seems to me that the key words—and perhaps I could invite the noble Lord to refer to the Bill—are in Clause 4(1)(d), which relates to an application for judicial review in relation to their removal. As my noble friend Lord Horam indicated, such an amendment would again undermine a key feature of the scheme provided for in the Bill. We must stop the endless cycle of late and repeated challenges that frustrate removal under the current law. Of course, it is right to say, too, that there is no general block on non-suspensive judicial review provided for in the Bill.

The Bill provides for two types of claims that would suspend removal, and we will come on to those in due course in Committee. Those provisions provide sufficient remedies to challenge a removal notice and afford the necessary protection to a person suffering serious and irreversible harm were they to be removed to the specified third country. All other legal challenges, whether on ECHR grounds or otherwise, should be non-suspensive. Therefore, Clause 4(1)(d), read with Clause 52, does not oust judicial reviews; those provisions are simply making it clear that any judicial review cannot block removal.

As regards Amendment 21, tabled by the noble and learned Lord, Lord Hope of Craighead, and spoken to by the noble Lord, Lord Anderson, I have already indicated that inadmissibility is not a new concept. It has been a feature of the UK asylum system for some time and is already enshrined in the Nationality and Borders Act 2022. While I welcome the Constitution Committee’s scrutiny of the Bill, I cannot accept its characterisation of the provisions as having significant rule of law implications. What does have significant implications for the rule of law, I suggest, is tens of thousands of people arriving on our shores each year in defiance of immigration laws. These individuals should be claiming asylum in the first safe country they reach, and, in these circumstances, it is legitimate to declare any protection claims inadmissible to the UK system.

The noble Lord, Lord Anderson, asked what would happen to an asylum or human rights claim that had been declared inadmissible, but where the person had had their factual or suspensive claim accepted. In such a case, the person’s claim would be considered under the existing law. That might include existing inadmissibility provisions. I again remind the Committee that inadmissibility is a long-standing process intended to support the first safe country principle. It is an established part of the international asylum procedures applied across the EU and specifically provided for in UK law, most recently in the strengthened provisions introduced in the Nationality and Borders Act 2022.

[Lord Anderson of Ipswich (CB)]

I am grateful to the Minister. In the circumstances that he accurately sets out, could a declaration of inadmissibility be reversed so that the human rights claim or the protection claim could proceed in the normal way?

[Lord Murray of Blidworth (Con)]

The provisions of the Bill in relation to that are a little involved, and I will write to the noble Lord.

Amendment 23 in the name of the noble Lord, Lord Dubs, also deals with inadmissibility. It seeks to provide for asylum and human rights claims from those who have not been removed within six months to continue to be admissible within the UK. In effect, the amendment seeks to perpetuate our current broken asylum system. Again, it seeks to chip away at and put holes into the scheme provided for in the Bill, undermining its coherence and effectiveness. This amendment would regrettably again encourage illegal migrants to use every tactic to frustrate their removal, in the knowledge that after six months their asylum claim would be processed. Moreover, the amendments would unfairly result in individuals who have arrived illegally in the UK being prioritised alongside those who have availed themselves of our safe and legal routes—something which, I suggest to the Committee, is manifestly unfair.

The Bill must send a clear message that if you come to the UK via an illegal route, you will never be able to return to the UK or build a life here. The benefits of settlement should be open only to those who abide by our rules. The whole construct of the scheme is to enable illegal migrants to be removed within days and weeks, not months and years. There is no prospect of someone being left in perpetual limbo, as suggested by a number of noble Lords, including the noble Lord, Lord Dubs, and the right reverend Prelate the Bishop of Coventry. Amendment 23 is therefore redundant. I therefore invite the noble and learned Lord, or his proxy, not to press Amendment 20.

Public Order Bill

Lord Anderson of Ipswich Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, I will intervene very briefly to make two points. I spent about eight years overseeing police work on counterterrorism in London and more generally. The use of the Section 44 power, which gives the police the power to stop without suspicion, was one that most people, when they thought about it, would say was acceptable: they understood that they were in an area where there was an obvious terrorist target and heightened concern.

When that power was exercised, was it without controversy? I am afraid that the answer is no. There was enormous resentment towards it, precisely because of the issues about disproportionality that have already been referred to and the complications that ensued from that.

That was in circumstances when most people might understand it, when they had it quietly explained to them—which does not usually happen during the course of a normal stop and search—that, “We’re stopping you, because we’re in this area, you are close to this and we are stopping people at random, just to make sure that they are not carrying explosives or a bomb”. But this is about circumstances where people are engaging in a demonstration or exercising their civil rights. That is of a completely different order and what makes this disproportionate.

My second point may sound trivial by comparison. We have had the point made about what rank of officer should look at this. It was suggested by the noble Lord, Lord Hogan-Howe, that it might be quite difficult to find a chief superintendent at the right moment. All I would say is, if this is a matter of such seriousness that we are being asked to approve these extraordinary, disproportionate powers, then there should be a chief superintendent or people of equivalent rank overseeing and supervising what is happening.

[Lord Anderson of Ipswich (CB)]

Before the noble Lord sits down, I should say that he refers to the Terrorism Act power of stop and search. Of course, Section 44 is now replaced by Section 47A, which adopts a similar model to Clause 11. Has the noble Lord noticed and does he have any comment on the provision that the power to authorise no-suspicion stop and search under Section 47A, which can be exercised only when there is a reasonable suspicion that an act of terrorism will take place, may be taken only by a senior police officer—in other words, a commander or an assistant chief constable?

[Lord Harris of Haringey (Lab)]

The noble Lord interrupted me before I sat down, although I regarded myself as having sat down. The noble Lord, Lord Anderson, is absolutely correct. The reason Section 44 was changed was because of the concerns that I have expressed. The conditions on that, in circumstances when most sensible people would regard it as appropriate, perhaps, to have in your back pocket the power to stop without suspicion, were tightened in a way which this Bill would not allow.

National Security Bill

Lord Anderson of Ipswich Excerpts

3rd reading
Monday 13th March 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I still feel quite grumpy about the Bill, but I accept that the Government have moved a little. I very much hope that, when it gets back to the other place, Members there will perhaps see fit to introduce stronger protections for journalists. I understand that something has gone into the Public Order Bill, but I think something should have been in this Bill as well.

[Lord Anderson of Ipswich (CB)]

My Lords, we on these Benches are often critical of the Government—of either colour, I understand—so it is perhaps appropriate to record my appreciation, at least, to the Minister and indeed to the Security Minister, for the patience with which they listened to us, but also for the imagination with which they reacted, not simply producing cosmetic tweaks that resulted in dogs being called off, but being prepared to go back, particularly on the political tier of the foreign influence registration scheme, to first principles and to think it out again, with the consequence, I suspect, that we are now left with something of real value, rather than the bureaucratic nightmare with which we were threatened when the Bill left the Commons.

Amendment 1 agreed.

National Security Bill

Lord Anderson of Ipswich Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

So I would invite the Minister who replies to this debate to see that this is a very simple point. It would do absolutely no harm to take out the words that we have complained of in the amendments, it would improve relations with Cyprus—already very close—and it would apply something that we always strive for in this House, though not always in another place, which is consistency of wording in the statute. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I declare my connection with the Government of Cyprus, as detailed in the register, and, like my noble friend Lord Carlile, I have spoken to the High Commissioner about this. Clause 97, as the noble Lord, Lord Carlile, has said, is a sufficient and constitutionally appropriate way to apply legislation of this Parliament to the SBAs. In light of that power, like my noble friend I have difficulty in understanding why it continues to be thought necessary for Clause 7, by its definition of “prohibited place”, to apply Clauses 4, 5 and 6 to the SBAs directly.

The noble Lord, Lord Carlile, has said nearly everything, so I will make just two points, addressing what I have seen to be arguments that the Government have sought to make in respect of these clauses. Firstly, there is said to be a partial precedent in Section 10 of the Official Secrets Act 1911—well, what may have been appropriate at the height of empire is surely not appropriate now. Secondly, it is said that these clauses are evidently not intended to apply in the SBAs, as may be seen from the fact that the police powers in Clauses 5 and 6 are vested only in UK officers; yet the phrase “prohibited place” in each of those clauses is clearly defined as including the SBAs. The impression given by those clauses is that powers in the military areas, and indeed in adjacent areas lived in and farmed by local people, are vested in British constables.

That impression may not respond to realities on the ground, but it is certainly unfortunate, and I hope the Minister will do what he can to dispel it, hopefully by accepting these amendments.

[Lord Wallace of Saltaire (LD)]

My Lords, my name is also on these amendments, and I have also spoken with the High Commission; my noble friend Lord Purvis has spoken to both the Minister on the Front Bench and to the noble Lord, Lord Ahmad, in the Foreign Office. If I have an interest to declare, it is that 25 years ago I worked on the Cyprus conflict and discovered a fair amount about the complexities of Cypriot politics—and they are no less complex today than they were then.

I will make a number of domestic comparisons. This is in my experience very much a Home Office Bill; it does not appear to take into account diplomatic niceties or the sensitivities of other states. We have some bitter experience in this country of sensitivities about sovereignty and the attempts by other states to exert legislative authority over this country, in relation to the EU. We are still being told that the European Court of Justice has imperial ambitions, and that we had to regain our sovereignty because it was trying to legislate for us, about our country.

Beyond that, of course, we have US bases in this country. I am very familiar with RAF Menwith Hill, which is close to where I live in Yorkshire, and I know a fair amount about RAF Mildenhall. The Minister will remember that when it appeared that the wife of a US serviceman at RAF Mildenhall was trying to evade British law by claiming diplomatic immunity and then going to the United States, there was a campaign of outrage in the Daily Mail, the Daily Telegraph and others over this incursion into British sovereignty.

I remind the Minister that the agreements between the UK and the United States over US bases in this country are extremely discreet: the details have not been published; they are renewed every 10 years without parliamentary debate; and the two countries negotiate quietly about the conditions under which they operate. They do not involve Congress legislating with reference to these extraterritorial bases in the United Kingdom. Indeed, if Congress were to legislate with reference to RAF Mildenhall, RAF Menwith Hill and other bases, I am sure that the Daily Mail, the Daily Telegraph and others would be outraged on our behalf at this apparent imperial incursion into British sovereignty.

I am conscious that Cypriot domestic opinion has as many elements, from the right to the left, as we have in this country. Of course, it would be a populist, nationalistic, mischievous campaign to provoke a public outrage in Cyprus about this apparent incursion into Cypriot sovereignty, but we in Britain now have some hard-won and bitter experience of how easy it is for populist and mischievous politicians to cause nationalistic outrage.

These references are not necessary. Clause 97 is enough. I hope that the Minister will take advice and consider that the Government should withdraw the references to the sovereign base areas in these other clauses. I repeat: Clause 97 is enough. The good will of the Government of Cyprus, and of the public in Cyprus, is important to this country, and we should not offend them.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

The point, as the noble Lord will appreciate, is that the Bill should endeavour not to leave any potential vacancies which would potentially deprive the SBAs of applicability to this very important statutory provision. I reiterate the point I made in Committee that the Government consider that any references in the Bill to the sovereign base areas will not in any way undermine the provisions of the 1960 treaty, concerning the establishment of the Republic of Cyprus, between the United Kingdom, Greece, Turkey and Cyprus.

To address the point raised by the noble Lord, Lord Wallace, I can confirm that the Foreign, Commonwealth and Development Office and the SBAs were consulted extensively throughout the Bill’s development and agree on its conclusion. I therefore disagree with the noble Lord that relying solely on Clause 97 would cause no harm.

I hope this explains the need to maintain the references in Clauses 7 and 8 and why the Government cannot accept the tabled amendments.

[Lord Anderson of Ipswich (CB)]

The Minister has given us an explanation and I accept that the reference to a constable is to a United Kingdom constable, but Clause 6 gives the constable the power to clear people out of prohibited places. Why is it necessary for United Kingdom law to apply? Why is it not enough that this power should exist under the Order in Council applicable to the SBA? Since only the United Kingdom constable is covered in Clause 6, how can it possibly be necessary to define “prohibited place” for the purposes of Clause 6 as including places outside the United Kingdom? I just do not understand it.

[Lord Murray of Blidworth (Con)]

The Government take the view that it is necessary to have the matter protected in UK law in addition to SBA law, and that, I am afraid, is the answer.

--- Later in debate ---

If the Minister can provide sufficient assurance today from the Dispatch Box—I have to say that I have already discussed this with the Minister and he has been very flexible—I will be content that this defence finds the right balance, providing the necessary protection to our intelligence officers while also incorporating the required safeguards and maintaining a sufficient level of accountability and oversight. If that is the case, and that is made clear from the Dispatch Box, I will not press my amendments.

[Lord Anderson of Ipswich (CB)]

My Lords, I will speak to Amendment 68 on the supplementary sheet in my name and that of the noble Lord, Lord Carlile. The immunity that preceded this Clause 30 may have been doomed from the moment the noble Baroness, Lady Manningham-Buller, began her speech in Committee by saying that

“it seems to me that it is wrong in principle for members of the security and intelligence services to have immunity from the law”.—[Official Report, 11/1/23; col. 1452.]

She was right. That was just one reminder of how fortunate we are in the calibre and integrity of our intelligence chiefs, including those who have found their way into your Lordships’ House.

We now have a further statutory defence which would bite on encouragement or assistance of foreign crimes, which, although unreasonable and thus outside the scope of the existing Section 50 defence, is none the less considered necessary for the proper exercise of a function of an intelligence service or the armed services. A defence is, as has been said, in any view more acceptable than an immunity. But the likely marginal gain of this one seems limited, and its purpose is obscured.

So I ask the Minister in this new context to deal with the issue which, as we have just heard, the ISC did not look at. Why is this defence so broad in its application to the Armed Forces? The Minister indicated in Committee that the immunity was

“confined very much to the intelligence support by the Armed Forces”.—[Official Report, 11/1/23; col. 1458.]

We all know that the Armed Forces sometimes deploy in support of intelligence work overseas by the agencies. We also know that the Intelligence Corps has its own abilities for the gathering and analysis of intelligence. That is captured by my amendment, though perhaps not by that of the noble Lord, Lord Beith.

What justification is there for extending this new defence to activities of the Armed Forces that are not intelligence related? Exceptions to the rule of law should be tightly controlled. Why should service personnel be exempt from the same law that applies to the rest of us outside the special circumstances of intelligence? From the debate in Committee, I understood those were the only circumstances thought relevant. I hope the Minster will be able either to explain this or to accept my amendment to his amendment. In the light of what we have just heard from the noble Lord, Lord West, the Minister also has a great deal of explaining to do in relation to the important points that he raised.

I would like to make two comments on Amendment 67, in the name of the noble Lord, Lord West. I have two reservations about it. Necessary and proportionate is the test, and I would have thought that conduct that is necessary and proportionate is also reasonable, and therefore would benefit in any event from the Section 50 defence. I just wonder how much this really adds.

Secondly—I defer to more experienced criminal lawyers than me, of whom there are at least two in the House—the concept of proportionality could be quite a complicated one to explain to a jury. I am not sure I can think of any other criminal offence in which that concept exists. Proportionality in law, as I recall, is a four-part test, explained by the Supreme Court in the Bank Mellat case. That might rather complicate the route to a verdict. However, those are technical points.

The objections raised by the noble Lord, Lord West, are very serious. It is in the interests of the agencies to co-operate to the very fullest extent with the ISC. It is in the interests of all the rest of us, and I am quite sure it is in the interest of the Home Office as well. It is very distressing to hear that that did not happen in this case. So, in view of the serious points that the noble Lord made, and despite my rather lukewarm feelings about his amendment, I shall listen very carefully to what the Minister has to say in response. I sense that perhaps this is a discussion that will need to continue.

[Lord Carlile of Berriew (CB)]

My Lords, I rise briefly, I hope, to say that, first, I agree with everything that my noble friend just said and will not repeat it. Secondly, I regard Amendment 66 to be a considerable improvement on what we were faced with before we started the Bill. Indeed, it is not a provision that provides immunity, it is evidence-based, it has a strong public interest element, but it is not perfect. One of the complaints I have received—only anecdotally but from authoritative sources—is a lack of understanding, among fairly senior public servants, of why the Secretary of State no longer carries any responsibility for the sort of decisions referred to in Amendment 66. The requirement in its subsection (5) that the Defence Council must ensure that the Armed Forces must have various arrangements in place is welcome as far as it goes, by why are Secretaries of State being eased out of any level of responsibility for decisions of this kind? I am not sure there is total confidence, among the kind of officials I have referred to, in the Defence Council to be as definable a source of responsibility as the Secretary of State.

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[Lord Sharpe of Epsom (Con)]

I will turn to ministerial responsibility if the noble Lord will bear with me. In fact, I am going to do it now. The Government propose that there is ministerial responsibility for these arrangements; that is, the relevant Secretary of State must consider that the arrangements put in place by the heads of agencies and the Defence Council are satisfactory. I have already said this, but there is more to say on the subject. Nothing in this proposed defence will change the current compliance and oversight arrangements, such as the Fulford principles and Overseas Security and Justice Assistance guidance, which is monitored by the Investigatory Powers Commissioner’s Office—IPCO—via regular inspections and regular scrutiny by the ISC. I will return to this in a second.

I now turn directly to the amendments tabled by the noble Lords, Lord Beith, Lord Anderson and Lord Carlile, which, in short, seek to do two related things: to restrict the activities covered by the defence for the MoD to those which are related to intelligence activities, and—in the case of the amendment of the noble Lord, Lord Beith—to restrict the defence to apply to the MoD only where it acts for UKIC.

I will now speak on behalf of the MoD and my noble friend Lady Goldie, who has sat through this debate. With reference to the Armed Forces, the amendment will enable more effective co-operation with our international partners. It will address operational challenges and remove the personal risk that trusted and dedicated individuals face for carrying out their proper official duties, whether as serving members of our Armed Forces or as intelligence officers within our UK intelligence community.

The amendment is principally concerned with addressing risks arising within an intelligence-sharing context, a primary activity of UKIC. What is perhaps less understood is the criticality of intelligence activity from an Armed Forces perspective, with intelligence sharing often forming a necessary part of wider co-operation with our allies. I assure noble Lords that the amendment is about clarifying the law and removing liabilities which sit onerously with individuals going about their lawful and legitimate duties.

The UK is committed to the rule of law and we would never collaborate or share information with a foreign partner with the intention of supporting unlawful activity overseas, but the SCA amendment does not change that. All aspects of the activities of our Armed Forces will continue to be bound by the relevant law of England and Wales and of international law. There will be no change to the UK’s international legal obligations, including under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and on assisting an unlawful act under Article 16 of the International Law Commission’s Responsibility of States for Internationally Wrongful Acts.

This defence will apply only where activity is necessary for the proper exercise of a function of the Armed Forces, and any individual found to be working outside the proper functions of the Armed Forces will remain liable for those actions. Actions not in compliance with the MoD’s robust internal policies and processes, again such as the Fulford principles and the OSJA Guidance, which are designed to ensure that MoD officers do not knowingly support unlawful activity, would not be in the proper exercise of a function of the Armed Forces.

I turn to the amendment tabled by the noble Lord, Lord Anderson. My noble friend Lady Goldie thanks him for the opportunity to discuss this with him. I understand that, because of a technical omission, he may not move his amendment tonight, but my noble friend Lady Goldie has—

[Lord Anderson of Ipswich (CB)]

As a point of correction, the omission has been remedied and the amendment is on the supplementary sheet.

[Lord Sharpe of Epsom (Con)]

My noble friend Lady Goldie has not been able to discuss that with our right honourable friend the Secretary of State for Defence, who is currently abroad, but she undertakes to do that and to engage with him on his return.

I turn to the amendment in the name of the noble Lord, Lord West. I am grateful for his contribution at Second Reading, where he confirmed that the ISC recognised that the government amendment identified a legitimate problem. This proposed amendment seeks to insert proportionality into the defence we are proposing in Clause 30. The objective of proposed new Section 50A is to provide clarity on how an individual working for UKIC or the Armed Forces can defend against a case in which they face personal criminal liability for the SCA offences.

For the reasons outlined previously, the Government consider that the existing reasonableness defence in Section 50 of the SCA does not achieve this, given we would be asking a jury to consider what is reasonable in the complex operational circumstances in which our intelligence agencies and Armed Forces work with our international partners to protect the United Kingdom. The Government consider that inserting a proportionality requirement would have the same effect, in that it reduces the clarity of the defence, which not only does not achieve the objective of providing greater certainty to those who are carrying out vital work to protect us all but complicates a defence which is currently based on the functions of the organisations concerned. On that basis, we think that explicit reference is best left out of the defence, and we therefore cannot accept this amendment.

However, to be clear, considerations of proportionality are a crucial component of operational planning and delivery, and core to many of the legal frameworks with which UKIC and the Armed Forces are required to comply. Any joint working with a partner must be in accordance with domestic and international law, including relevant principles of reasonableness, necessity and proportionality. Where the intelligence services or Armed Forces do not apply proportionality consistently with their legal or policy obligations, that would not be a proper exercise of their functions. To be completely clear, a person’s lack of compliance with their legal and policy obligations could be considered by the prosecution and would impact the availability of the defence —that includes proportionality.

Arrangements in place ensure that UKIC and the Armed Forces apply rigorous safeguards, standards and internal processes for determining that activity is lawful and properly exercised. The arrangements include the following: operational decisions are recorded, taken at appropriate seniority and made with the benefit of advice from specialist legal advisers to ensure compliance with domestic and international law; all personnel receive mandatory training on their legal obligations; policy documents set out specific requirements for different activities, including what authorisations are required and how to decide whether activity is necessary, reasonable and proportionate. Compliance with these requirements ensure that acts are within the proper exercise of the functions of the organisation concerned.

Some of these policies have been published, such as the Fulford principles, where the passing and receipt of intelligence relates to detainees, the compliance of which is assessed by the Investigatory Powers Commissioner’s Office, as I have already noted. Arrangements can also go beyond pure legal considerations, with ethics counsellors in post to discuss the difficult decisions we sometimes take when balancing risk.

To go back to Secretaries of State, they are accountable for the work of the intelligence services and the Armed Forces in Parliament. A central part of their obligations will remain authorising the required operational activity at the appropriate time.

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[Lord Sharpe of Epsom (Con)]

My Lords, I cannot confirm that from the Dispatch Box, but I will write to the noble Lord with the appropriate clarification. I do not actually have a copy of the OSJA Guidance in front of me, but I appreciate the points he is making.

I return to the third concern raised by the noble Lord, Lord West. I can confirm that, where a member of the intelligence services or the Armed Forces conducted activity that did not comply with the arrangements—namely, the rigorous safeguards, standards and internal processes that I described earlier—this breach of the arrangements could be scrutinised by the proper oversight mechanisms; for example, an error would be reported to IPCO for a breach of the Fulford principles. It could be considered by the prosecution and would impact the availability of the defence. I also assure the noble Lord that the introduction of this new defence, in and of itself, will not lead to fewer ministerial authorisations sought by the intelligence services or to less daily oversight from Ministers and/or judicial commissioners over intelligence activity. I know that he asked me for an explicit reassurance on that point.

I conclude by saying that, for the reasons I have outlined, the Government cannot support the amendments tabled by noble Lords against Clause 30, and therefore ask noble Lords not to press their amendments. I also ask the House to support the new SCA defence amendment tabled by the Government.

[Lord Anderson of Ipswich (CB)]

The Minister has been helpful, but I hope he can be more specific. When does he think the encouragement or assistance of an overseas crime, conduct which is penalised by the Serious Crime Act 2007, might be necessary for the proper exercise of a function of the Armed Forces, other than in the intelligence context? For my part, I am quite prepared to accept that it may be necessary in the intelligence context; what I have not heard from the Minister is any suggestion of any other context in which it might be necessary, yet he asks me to withdraw my amendment, which would limit the application of the defence to the intelligence context. It may be that his answer will be in what I think he said about the noble Baroness, Lady Goldie, needing further time to consult ministerial colleagues, but if I am to withdraw my amendment, and those discussions have not yet taken place, what assurance can he give as to possibly bringing back the issue at Third Reading?

--- Later in debate ---

Tabled by

[Lord Anderson of Ipswich]

68: In inserted section 50A(2)(b), leave out “a” and insert “an intelligence-related”
Member's explanatory statement
This amendment would restrict the application to the armed forces of the new defence to charges under Part 2 of the Serious Crime Act by limiting it to the exercise of intelligence-related functions.

[Lord Anderson of Ipswich (CB)]

Given the Minister’s undertaking, I shall not move the amendment.

Amendment 68 (to Amendment 66) not moved.

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[Lord Purvis of Tweed (LD)]

My Lords, I am not sure whether the noble Lord will seek to test the opinion of the House—he is nodding from a sedentary position. If he does, we will support him. However, that is not to disregard that the Government have listened and responded positively to the points made in Committee on the need for independent oversight.

Therefore, I will support what the Government say, with just with one question regarding oversight and their intention. We have two former independent reviewers in the House at the moment. I am not sure what normal practice is, but the Government’s amendment, regarding the independent reviewer providing a report to the Secretary of State and the Secretary of State then laying that before Parliament, gives no indication of a timeframe for laying the report before Parliament after it has been received from the independent reviewer. Given the earlier comments from the noble Lord, Lord Coaker, regarding Governments not providing information to Parliament in a timely manner, could this unfortunately be a wee loophole in the independent reviewing? It seems that the amendment gives Ministers complete discretion on when they may present reports to Parliament. Therefore, reports could be received from an independent reviewer but not presented to Parliament for a considerable period or at all.

I hope that is not the case and that this can be clarified by the Minister, but it is an omission within the Government’s amendment, which is otherwise welcome. As I say, the Government have moved, but I hope that the Minister can respond on the areas of omission.

[Lord Anderson of Ipswich (CB)]

The noble Lord, Lord Purvis, hits on a sore point for independent reviewers past and present. At the instigation of my noble friend Lord Carlile, the Australians copied the job of independent reviewer—I think they call him or her the independent national security legislation monitor, which is even more indigestible. In doing so, they provided in their statute that reports be laid before Parliament within, I think, 15 sitting days of receipt by the Minister, an excellent discipline which I rather wish this amendment had followed.

I do not wish to seem ungracious. The independent review of powers, whose exercise is attended by secrecy, is a token of good faith on the part of government. It has proved its worth since the 1970s in this country in the context of counterterrorism law. I never doubted the good faith of the Government where this Bill is concerned. This amendment will make that good faith evident to others. It will help to dampen down the conspiracy theories that are so prevalent in this area and allow us to keep pace with Australia—and shortly, I hope, Ireland—in providing for independent oversight of almost the full range of national security laws.

However, gratitude has its limits. On first inspection, the amendment tabled by the noble Lord, Lord Coaker, looks even better, so if he divides the House, I shall vote for it.

[Lord Murray of Blidworth (Con)]

My Lords, I thank noble Lords for those contributions. There has been plenty of discussion throughout the passage of this Bill about the need for oversight of the state threats provisions in the Bill. The Government have welcomed this debate and agree on the need for the Bill to go further in this regard. The new provisions proposed by the Government do just that. I am very grateful for the remarks made by the noble Lords, Lord Ponsonby and Lord Purvis, on the Government’s movements in that regard.

I will not spend too long on this group but will set out briefly the provisions and how we expect the government provisions to work in practice. The amendments made by the Government create a single reviewer of state threats legislation to oversee the operation of the measures in Parts 1 and 2 of the Bill. This means that the reviewer will oversee not just the STPIM regime but the criminal offences and the exercise of police powers to ensure that their use is appropriate and proportionate.

The Government are also bringing oversight of the provisions of the state threats port stops power—Schedule 3 to the Counter-Terrorism and Border Security Act 2019—within the remit of the new reviewer, meaning that all dedicated state threats legislation will be considered as part of a single reviewer’s role.

The Government have heard the argument that this role should in practice be carried out by the Independent Reviewer of Terrorism Legislation and can see the potential benefits this could bring. However, the Government are also conscious that the role will be of public interest and will therefore run an open competition for it, rather than appointing someone directly. Given the synergy between the roles, the Government will align the appointment cycle of this post with that of the terrorism reviewer. This will allow the role-holders to work closely together, but also provide the option of having one individual fill both roles, should that be beneficial.

I thank the noble Lord, Lord Coaker, for his proposed amendment on this topic, which would achieve the same effect but also add Parts 4 and 5 to the remit of the reviewer. As mentioned in previous debates on this topic, an explicit commitment to oversight of Part 4 in the Bill is unnecessary, given it is already in the remit of the Independent Reviewer of Terrorism Legislation. I therefore suggest that there is nothing lacking from the present proposal. The provisions in Part 5 are supplementary to the rest of the Bill. The reviewer will be able to look at how Parts 1 and 2 operate in terms of commencement, regulation-making powers and territorial extent without the need explicitly to mention Part 5 in the powers for the reviewer. For those reasons, the Government cannot accept Amendment 80 as tabled by Labour, and hope that colleagues across the House will welcome the government amendments.

Public Order Bill

Lord Anderson of Ipswich Excerpts

3rd reading
Tuesday 21st February 2023 Lords Chamber

[Lord Cormack (Con)]

My Lords, I rise briefly to support what my noble friend has just said. I am grateful, as we all are, to my noble friend Lady Sugg, who has made a genuine effort to improve things since the first time she moved her amendment. That should be, and I think is, acknowledged throughout the House.

As my noble friend Lord Jackson said, we are potentially on a slippery slope here, because the stigmatising of someone who privately prays and does not necessarily say anything at all is very dangerous. We sometimes debate what happens in other countries, and although this is a long way off Chinese practice, it is going in that direction. We should be very careful. The law as it stands, without Clause 10, is adequate to deal with any problems that might arise. I can see that they might from time to time, but I do not believe that the “sledgehammer to crack a nut” approach is the right one. As my noble friend said, the Bill will go on the statute book. It will accompany many other imperfect pieces of legislation that we really should not have allowed through your Lordships’ House.

[Lord Anderson of Ipswich (CB)]

My Lords, I want to say three things. First, I pay tribute to the noble Baroness, Lady Sugg, for the remarkable job she did after the contentious committee hearing on this clause. She forged a result which, although certainly not perfect, and which continues to evoke strong feelings, had the support of a very great majority of your Lordships.

Secondly, I thank the Minister for taking on board Amendment 9, which is surely not controversial but mends the hole in this Bill by ensuring that the same incidents are not taken into account for successive serious disruption prevention orders.

My third point is also addressed to the Minister, but I suspect more particularly to his ministerial colleagues. On both stop and search and serious disruption prevention orders, your Lordships’ House has not obstructed clear government policy but has found a way—with the benefit of our collective experience—to leave the police with the powers the Government say they need, while removing the excessive and unnecessary elements of each power. The things we removed are no-suspicion stop and search and the power to trigger SDPOs on the basis of activity that does not meet the criminal threshold.

I remind the Minister that all this was passed with overwhelming Cross-Bench support. All three amendments on these subjects were signed or supported by two Lord Chief Justices, two further judges of our highest court and a former Commissioner of the Metropolitan Police, my noble friend Lord Hogan-Howe, who, in my experience, knows exactly what he is talking about on these issues. The three amendments collectively attracted 162 Cross-Bench votes, with only eight against. Of course, these Benches are only a small part of the House, but not one, I hope, that anyone would willingly confuse with a crypto-anarchist front. I believe that the Minister, with his own policing experience, will see the force of these views, and I ask him to convey that to his colleagues in the Commons. I hope that this Bill can become law without tiresome ping-pong and with these amendments in place.

[Lord Paddick (LD)]

My Lords, we wholeheartedly support all the amendments in this group. Noble Lords often talk about the tremendous work the noble Baroness, Lady Sugg, has done on this Bill, although I realise they have not said it in those terms.

It may come as a surprise to Members of this House that I consider myself to be a Christian. I rather overdid it: I was baptised as an infant; then I became a Baptist and was baptised by total immersion; and then I went to Oxford and was confirmed in the Church of England. It was belt and braces as far as I am concerned. This legislation is not anti-Christian and, in respect of people who privately pray, my understanding is that prayer works very effectively outside of a 150-metre radius of an abortion clinic.

I have to apologise to the House: I should have been on my guard on Report. I refer to the debate on 7 February, when the Minister talked about the Government having tabled amendments

“which seek to allay some of the concerns expressed by your Lordships.”

I think the Minister knows what is coming. He went on to say that the second amendment, Amendment 58,

“reduces the relevant period of past conduct which is considered for SDPOs from within five years to within three years … It is the Government’s view that these amendments represent a substantive offer and address the main criticisms of SDPOs”.—[Official Report, 7/2/23; cols. 1147-48.]

Regrettably, when it came to Amendment 58, the Minister “not moved” his own amendment. I was not quick enough to intervene to rescue it, so that amendment is lost. It was not part of an amended part of the Bill, so it cannot be amended here at Third Reading, and it cannot be amended in the Commons either. As I said, I apologise for not being quick enough to spot that mistake. Having said that, we support all the amendments before the House today.

Public Order Bill

Lord Anderson of Ipswich Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

56: Clause 19, page 22, line 20, leave out sub-paragraphs (iii) to (v)
Member's explanatory statement
This amendment would limit the trigger events for an SDPO to the commission of a protest-related offence and the breach of a protest-related injunction.

[Lord Anderson of Ipswich (CB)]

My Lords, I rise to propose a number of amendments to Part 2 of the Bill, which provides for serious disruption prevention orders, or SDPOs. These are civil orders, breach of which is punishable by imprisonment. Imposed by magistrates at the request of the police, their intended effect is to prevent people, who may or may not have been convicted of a protest-related offence, from participating in or assisting future protest-related activities by means of blanket restrictions on their movement, activities, association, and use of the internet—see the list of permitted requirements in Clause 21(2) and the rather forbidding list of permitted prohibitions in Clause 21(4), neither of which is exhaustive.

In Committee, the Minister said, rather colourfully, that SDPOs are targeted on

“a small group of individuals”

who

“repeatedly trample on the rights of the public without let or hindrance”.—[Official Report, 13/12/22; col. 639.]

For those individuals, we are asked to assume that the availability of bail conditions and of ever-longer prison sentences for an ever-growing list of offences are insufficient.

My objections to SDPOs are twofold. My first is, to use the Minister’s language, that they can imposed not just on those who trample on others but on people who tiptoe over the boundary or enable others to do so and, indeed, under Clause 20, on people who have never broken the law and in respect of whom there is no evidence that they ever will. The likely effect of these clauses in chilling the freedom of assembly is obvious.

My second objection is that there are remarkably few lets and hindrances on SDPOs themselves, even by the standards of comparable orders aimed at the prevention of knife crime, domestic violence and terrorism. In Committee, I pointed out the six central respects in which SDPOs are more severe even than the TPIMs, successors to the once-controversial control orders that we impose on a tiny handful of dangerous terrorists and that I was much concerned with when I was Independent Reviewer of Terrorism Legislation. Yet the Government estimate that 400 SDPOs will be imposed every year: 200 after conviction for protest-related offences under Clause 19, and 200 under Clause 20 on people who need not have been convicted of anything at all.

I turn to the three categories of amendments in this group. The first category is the old stand part debates from Committee, renewed in the form of Amendments 59 and 63 in the name of the noble Lord, Lord Ponsonby, which I have signed, along with the noble Lord, Lord Paddick, and the noble Baroness, Lady Chakrabarti. These give effect to the views of bodies ranging from HMICFRS to the Joint Committee on Human Rights. They attracted wide and distinguished support when we debated them in Committee.

The second category of amendments are those tabled by the Government after the Minister’s promise to think further. Amendments 58 and 62 reduce from five years to three years the period in respect of which previous offences or other conduct may be taken into account before imposing an SDPO. That does not address the main concerns with SDPOs, but it is something. Amendment 65, with those consequential on it, deletes the express authority in the Bill for the use of electronic tags to monitor compliance with an SDPO. This removes one of the more eye-catching features of these orders but leaves unaffected the unlimited range of requirements that an SDPO may contain, limited only by the purposes broadly defined in Clauses 19(5) and 20(4). Finally, Amendment 69 provides that an SDPO may not be renewed more than once, although, since SDPOs can still be imposed for an unlimited duration, this might be considered a rather limited comfort. I thank the Government for these amendments, which are welcome. However, with respect, they do no more than nibble around the edges.

The third category of amendments are the seven that appear under my name, with the support of the noble and learned Lord, Lord Thomas of Cwmgiedd, and, as to six of the seven, the noble and learned Lord, Lord Hope of Craighead. I hope that it is fair to describe them as modest. I will say a brief word about each.

Amendment 56, to which I draw the particular attention of the House, and Amendment 60 would limit the trigger events for an SDPO to the commission of a protest- related offence or the breach of a protest-related injunction by the person to be subjected to an SDPO. The effect of that change is that you could not be a target of an SDPO, as you could under the Bill as it currently stands, if you drove your daughter to a demonstration in which serious disruption such as delay or hindrance was caused to two or more individuals.

Amendments 57 and 61 would ensure that a second or subsequent SDPO made in respect of any person was founded on trigger events that had not already been taken into account for the purposes of the imposition of a previous SDPO. I would be amazed if anything different were intended by Government, and I persist in the hope that these might be accepted as simply clarifying or tidying-up amendments.

Amendment 64 would limit the requirements that may be imposed by an SDPO to those having the effects specified in Clause 21(2). That would no longer be an illustrative list but an exhaustive list. But note the modesty of this amendment too: it would leave unaffected the long and draconian list of permitted prohibitions in Clause 21(4).

Amendment 71 would limit the total maximum duration of any SDPO to two years, which could be extended to a total of four years under the Government’s Amendment 69. Of course, new facts could form the basis of another SDPO even beyond that point.

Amendment 72 would remove the Secretary of State’s power in Clause 30(2)(b) to give guidance to the police

“about identifying persons in respect of whom it may be appropriate for applications for serious disruption prevention orders to be made”.

That guidance power is an extraordinary infringement on the operational independence of the police, as I hope your Lordships will agree.

I am unrepentant in my opposition to SDPOs as unnecessary, disproportionate and dangerously broad. That is why I support the stand part amendments from the noble Lord, Lord Ponsonby, and will vote with him if he so invites the House to remove Clause 20 from the Bill. If there is insufficient appetite to remove Clause 19 and the Benches opposite indicate their support, I propose to test the opinion of the House on my Amendment 56, which would ensure that the trigger events for an order under Clause 19 are limited to protest-related convictions or breaches of protest-related injunctions.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I will need to clarify that but, given the other things that I have said, it would imply—I stress “imply”—that the person needed to be there, but I will come back on that point.

I also stress that those who make their voices heard without committing offences or causing serious disruption would not be affected.

The evidential threshold of SDPOs was also the subject of discussion. I am sure that many noble Lords support the courts’ imposition of injunctions which are made on the civil burden of proof and ban large numbers of people protesting in certain locations, including, on occasions, “persons unknown”. The burden of proof is the same for SDPOs, and they are made against known individuals whose actions have shown that an order is necessary.

Noble Lords also raised the question of how SDPOs will be enforced. As I hope I conveyed in Committee, it will ultimately be for the courts to place necessary, proportionate and enforceable conditions on protesters subject to an SDPO and for the police to exercise any powers of arrest in relation to breaches. However, I assure the House that the Government will be setting out statutory guidance for SDPOs to aid the police and courts in due course.

The use of SDPOs is critical when equipping the police with powers to ensure that they can take proactive steps against prolific protesters. So in removing SDPOs fully from the Bill, we will continue to see the police struggle to get ahead of those protesters who are hell- bent on repeatedly inflicting serious disruption.

The noble Lord, Lord Paddick, mentioned the HMICFRS’s comments about banning orders not being compatible with human rights, but the report from the policing inspectorate considered only orders that would always ban an individual protesting. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related crimes and serious disruption, so depending on the individual circumstances this may mean that the court will not consider it necessary to stop individuals attending protests.

Nevertheless, as I made clear when we discussed these measures in Committee, I recognise the strength of feeling expressed by your Lordships. In that vein, I turn to the amendments tabled by the noble Lord, Lord Anderson. I thank him for his continued engagement on this Bill as a whole. His amendments all seek to amend the SDPO regime in some way, be it limiting the trigger events for an order, limiting the maximum duration of an SDPO, limiting the requirements that can be imposed on an individual or amending some of the guidance that is to be issued by the Secretary of State concerning these measures. We still believe that SDPOs are an important and useful tool for stopping repeat protesters committed to causing disruption. For this reason we regrettably cannot support the amendments proposed, which we assess amount to a substantial dilution of the Bill’s effectiveness. However, we recognise the sentiment behind them, as well as the other concerns raised, which is why I committed to take the matter away.

As a result of that consideration, the Government have tabled amendments which seek to allay some of the concerns expressed by your Lordships. We have tabled an amendment which removes the electronic monitoring provisions from the Bill, meaning that no individual subject to an order would have the requirements and prohibitions imposed monitored electronically. This was a particular concern of your Lordships, and we have responded accordingly. The second amendment reduces the relevant period of past conduct which is considered for SDPOs from within five years to within three years. The final amendment addresses a criticism made by your Lordships concerning the renewal of an order. Indeed, many noble Lords expressed concerns that an order could be continuously renewed. The amendment we have tabled therefore addresses this by setting a limit on the number of times an order can be renewed to only once. It is the Government’s view that these amendments represent a substantive offer and address the main criticisms of SDPOs. I encourage all noble Lords to support the amendments in the Government’s name and to reject the others in this group.

[Lord Anderson of Ipswich (CB)]

The Minister will recall that I described my Amendments 57 and 61 as clarificatory. It seemed to me that the Government must surely have not intended that a second or subsequent SDPO made in respect of the same person could be founded on trigger events that had already been taken into account for the purposes of a previous SDPO. I understand that the Minister does not accept my amendments, but can he at least clarify that that is the Government’s understanding of the Bill?

[Lord Sharpe of Epsom (Con)]

I can clarify that that is the Government’s understanding.

[Lord Anderson of Ipswich (CB)]

I am grateful to the Minister for that and for his engagement throughout this process. I am also grateful to all noble Lords who have spoken in this debate, in particular to the noble and learned Lord, Lord Hope, for his extremely pertinent points on the three sub-paragraphs that my Amendment 56 would remove from Clause 19, and to the noble Viscount, Lord Hailsham, for the broader point, which I tried to make as well, that those sub-paragraphs capture conduct that is simply too remote to justify the imposition of such a draconian order.

Very fairly, the noble Viscount made the point, echoed by the Minister, that a magistrate asked to make these orders under Clause 20, for example, must think it “necessary” for certain purposes—he noted the strength of that word. The noble Viscount is right about that, of course, but I simply ask the Government to have in mind, as I am sure they do, that the purposes for which it can be necessary are expressed very broadly indeed. For example, if you look at Clause 20(4)(c), you see that it can be necessary to prevent a person

“causing or contributing to … the carrying out by any other person of activities”.

One has all the same, very indirect language that I seek to remove by Amendment 56.

My amendments leave the police with a completely workable system to deter the small group of individuals who, in the Minister’s words, are hell-bent on repeating serious disruption; there can surely be no doubt about that. Both my amendment and the amendment relating to Clause 20 are too modest to impact on that objective. That is less than some of us would have wished, and I am sure the Government and the House of Commons will be well aware of that when it goes back to them, if these amendments are carried.

I have sympathy with the noble Lord, Lord Paddick, who does not think that my Amendment 56 goes far enough. I would love to have seen other amendments put to the vote, but I am told that politics is the art of the possible. I think the noble Lord agrees that this amendment is a great deal better than nothing and that this improvement will be greater still if Clause 20 can be removed from the Bill. I would like to test the opinion of the House on Amendment 56.

Public Order Bill

Lord Anderson of Ipswich Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, as the noble and learned Lord, Lord Hope, said, the Constitution Committee considered that a definition of “serious disruption” would be useful. I think there is a measure of agreement around the House that it would be, but the debate is about how best to define it. The amendment tabled by the noble and learned Lord, Lord Hope, to which I have added my name, is an attempt to provide that clarification. I can well imagine a court asking itself, “What is a serious disruption?”, and looking to see whether Parliament has given any help. None is provided at the moment. So I welcome that the Government have accepted, albeit somewhat at the 11th hour, that a definition will be useful.

Amendment 1, moved by the noble Lord, Lord Coaker, and which has the support of others who have already spoken to it, places the bar high. When combined with the necessity of proving not only intention or recklessness on behalf of the putative offender but the absence of a reasonable excuse, which—if the amendment tabled by the noble Baroness, Lady Chakrabarti, is accepted—is a prerequisite before you get to the other elements in the offence, it seems to me that, with all those requirements combined, it would be very difficult, if not impossible, to establish that an offence had been committed. That may well be the underlying purpose behind the combination of amendments. The opposition parties may not approve of the legislation, and, if they cannot get rid of it altogether, they may wish to emasculate it to such an extent that, practically, it cannot be relied upon. That is a perfectly tenable point of view, but not one that I share—and neither do the general public, I think, having seen the effect of some recent demonstrations.

The definition proposed by the noble and learned Lord, Lord Hope, does not place the bar as high as the noble Lord, Lord Coaker, does in his amendment. The former provides for an act that

“will result in, or will be capable of causing, serious disruption if it prevents or would hinder to more than a minor degree”—

he emphasised that last phrase—

“the individuals or the organisation from carrying out their daily activities.”

Clearly, that would exclude mere inconvenience, but it would include “disrupting”—that is an important word—people going to work, hospital, a funeral or a sporting event or taking a child to school; in other words, their “daily activities”. If they were inconvenienced only to a minor degree, that would not be a serious disruption, but the amendment tabled by the noble and learned Lord, Lord Hope, would, I suggest, be a useful guide to courts in determining what amounts to a serious disruption. If it is suggested that it sets the bar too low, we should bear in mind those additional requirements: mere accidental interference is not enough. We should bear in mind, too, how those are bespoke amendments to deal with locking on or tunnelling; they are not general or vague attempts to raise the bar to a particular level.

I also think the opposition parties may wish to bear in mind what the Labour Party shadow Justice Secretary said in connection to this:

“Our brave emergency services are being held up from helping those in distress, and lives have been put at risk. On top of that, the public has been stopped from going about their everyday business.”


I do not suppose that the Opposition would wish to disassociate themselves from that. It seems entirely consistent with the amendments tabled by the noble and learned Lord, Lord Hope, on serious disruption—and, when we come to them, on “reasonable excuse”.

Of course, I entirely accept that the right to protest is fundamental, and we must, as citizens, be prepared to put up with inconvenience caused by those exercising that important democratic right. We may find it noisy and annoying—depending on how much we sympathise with the cause, even very annoying—but that would not be enough to be a serious disruption. It must be something more than annoying, but less than the very high hurdle which must be surmounted by the wording of the amendment moved by the noble Lord, Lord Coaker. Ultimately, it may come down to whether your Lordships consider that the right to protest is so fundamental that it must trump the rights of ordinary people going about their everyday lives. It is a difficult balance to strike, but although I profoundly respect the right to protest and have sympathy for many of the relevant causes, it seems to me that one has to counterbalance that with the rights of others to go about their lives—those rights are entitled to protection, too, and this amendment attempts to achieve a balance between those respective rights.

[Lord Anderson of Ipswich (CB)]

My Lords, I am also glad that your Lordships’ House is trying to explain for the benefit of protesters and police what is meant by “serious disruption”, even if we are not finding it very easy.

I will start with the new tunnelling offences in Clauses 3 and 4, which, as I said in Committee in support of the consistent approach of the noble and learned Lord, Lord Hope, are in a very particular category. The key point, recognised in Amendments 14 and 24, is that the disruption liable to be caused by tunnelling is not to the general public but to construction or maintenance works. Delays to the delivery of time-sensitive products, and prolonged disruption of access to a rather specific range of goods and services specified in Amendment 1 of the noble Lord, Lord Coaker, are not really to the point. The one-size-fits-all approach in Amendment 1 is neither designed for nor appropriate to the tunnelling offences. I would add that to require disruption to be “more than minor” in order to constitute the new offences seems quite sufficiently generous to tunnellers who are seeking to disrupt those engaged in lawfully organised works. That is why I put my name to Amendments 14 and 24 and shall support them if they are put to a vote.

The arguments are more finely balanced in relation to Amendment 5. The locking-on offence, as the noble Lord, Lord Coaker, has said, can be constituted by a remarkably wide range of actions. I am wary of a test that is too easy to satisfy, bearing in mind that serious disruption, or the prospect of serious disruption, is the trigger for the no-suspicion stop and search power, and for SDPOs, the whole existence of which is controversial, at least to me. But I take comfort from the fact that, as the noble and learned Lord, Lord Hope, has explained, hindrance to the public needs to be significant before it can meet the test of being more than minor. Indeed, “significant”, not “substantial”, is the very word used in Amendment 1 when it refers not only to “significant harm” but to “significant delay”.

The recent Policy Exchange briefing, to which the noble Lord, Lord Coaker, referred, complains that the “more than minor” test may be interpreted in the light of the Strasbourg case law

“so as to maximise the space for protest”.

I agree that it will have to be interpreted in conformity with the ECHR. Policy Exchange seems dismayed by that; I am rather encouraged by it. When the definition offered by the noble and learned Lord, Lord Hope, is criticised from one side for being too easy to satisfy and from the other for being too difficult to satisfy, perhaps it is not too wide of the mark, even in this more sensitive context.

My main point is that whatever view noble Lords may take of Amendment 5, the case for Amendments 14 and 24 is a strong one. I hope we will have the chance to vote for them.

[Lord Brown of Eaton-under-Heywood (CB)]

Before my noble friend sits down, would he agree that there is no particular reason why Amendment 1—although plainly it would pre-empt Amendment 5—should pre-empt Amendments 14 and 24?

[Lord Anderson of Ipswich (CB)]

I believe the Deputy Speaker so directed at the outset of this debate—but I will be corrected if I am wrong about that.

[Lord Berkeley of Knighton (CB)]

My Lords, I would like to ask the noble Lord, and not from a musical perspective, whether if we change the words “more than minor” to “major” we might not make some progress, because surely that is what they mean.

[Lord Anderson of Ipswich (CB)]

I am conscious that an expert musician will certainly know the difference between minor and major. I take refuge in the fact that there is no such amendment before us, so perhaps I do not need to answer that today.

[Lord Pannick (CB)]

My Lords, the right to protest in a democracy is of central importance, but I cannot see that there is much of a right to glue yourself to another person or object in order to disrupt the daily lives of other people. That is what we are talking about here. There are many ways of protesting in our democracy without locking yourself on—without disrupting the lives of others. The conduct with which these clauses are concerned is very often, as the noble Baroness, Lady Jones, accepted, for the very purpose of disrupting the lives of others. I think that such conduct should not be unlawful, as Amendment 1 proposes, only if it causes prolonged disruption.

Preventing people going to work or taking their children to school or relatives to hospital should be unlawful. That is, as far as I can see, more at the minor end and sufficiently strong to outweigh the interests of the protesters, as the cases cited by the noble and learned Lord, Lord Hope, demonstrate.

I suggest that the House bears in mind one further point. There is a danger, when we consider all these amendments, that we do so by reference to protest with which we may sympathise—maybe environmental causes. But the protest may also be by those whose causes are far less attractive and far more damaging to a democratic society. Such protesters may also decide to lock on, and the law needs to deter and penalise them.

National Security Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I assure the Committee that this will not be a one-woman show all afternoon. I can be very brief on Amendment 80 because we will be hearing about Amendment 81.

The Bill establishes an independent reviewer in relation to PIMs under Part 2 and the JCHR felt that this, while a welcome additional safeguard, was too narrow and it was unclear why the independent reviewer’s role should be restricted to Part 2, because there are also significant concerns about how powers under Part 1 will be exercised. So we made a simple proposal, reflected in Amendment 80, recommending that the independent reviewer’s role should be extended to cover Parts 1 and 2 and that the Government should consider whether it could cover other core national security legislation.

As I say, I can be very brief because I tabled Amendment 80 before seeing Amendment 81, and we are about to hear from the heavyweights on this subject that they propose to make it even broader under further parts of the Bill. So I beg to move Amendment 80 but do not expect to say much more about it.

[Lord Anderson of Ipswich (CB)]

My Lords, my Amendment 81 is a bit wider than that of the noble Baroness, Lady Ludford, who is certainly a heavyweight in my book. I agree with what she has had to say about that.

Post-legislative scrutiny can take many forms, but where powers are exercised on the basis of secret intelligence, the options are more limited. Select Committees can do little, because they lack access to classified information. The Intelligence and Security Committee has that access, but its remit is focused on the intelligence agencies themselves. It is not equipped to review the operation by police and prosecutors of the new criminal offences in Part 1 of the Bill—or the new procedures in that part—or, indeed, to concern itself with the questions of damages and legal aid in Part 4.

The Independent Reviewer of Terrorism Legislation—its origins dating back to the 1970s—is the solution arrived at in one part of the national security landscape. The independent reviewer is an independent person with full security clearance—but without bureaucratic apparatus—reporting to government. Reviewers serve Parliament and the public by reviewing operational matters which, for national security reasons, neither they nor the usual inspectorates can scrutinise themselves. Their findings are often referred to by the courts and their recommendations taken on board by police, agencies and government.

The independent reviewer has spawned two imitators, in Australia and, more recently, in Ireland. I mention that because the independent monitor in Australia and the planned independent examiner in Ireland—the Bill has recently been published—are each entrusted with scrutinising the operation of national security law in its entirety, not just counterterrorism law. The same principle should apply here. The use of laws governing hostile state activity can be both as secretive and as sensitive as the use of laws against terrorism. That, no doubt—as the Minister said in the last grouping—is why the Government have already agreed to extend the jurisdiction of the independent reviewer to Part 2 of the current Bill, which is all about foreign power threat activity rather than terrorism.

Equally compelling, I suggest, are the arguments for independent review of Part 1. Part 1 is a complete recasting of the law against espionage, sabotage and acting for foreign powers. The offences and police powers are novel and untested; the risk of unintended consequences must be high. The offences will presumably be the subject of prosecutions. However, there is no mechanism for systemic oversight, either of the offences or of the far-reaching powers of entry, search, seizure and, in particular, detention, which are the subject of Clause 6, Clauses 21 to 26 and Schedules 2 and 6 to the Bill. Powers such as these can be controversial in their application: they are the meat and drink of the independent reviewer’s work.

Part 4 is all about terrorism and so falls even more naturally within the existing powers of the independent reviewer. History has shown the value of the scrutiny of the independent reviewer, not least in the years after 9/11, during which my noble friend Lord Carlile performed the role with such distinction. It is all the more necessary in this ever-questioning age. Indeed, something of this nature is a prerequisite for what has been called the “democratic licence to operate” that our secret state requires. The current independent reviewer, Jonathan Hall KC— who performs the role with imagination and acuity—has been consulted on this amendment. He is the obvious person to review Part 4 because of the terrorist connection. I suspect he could take on Parts 1 and 2 as well: our counterterrorism law is neither novel nor, for the most part, as controversial as it once was. But in case his apparently infinite energy should ever flag, my amendment—inspired by Clause 54, which it replaces—gives government the flexibility to appoint a different person to review Parts 1 and 2.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I do not have anything more to add other than to say that we support Amendments 80 and 81. The noble Lord, Lord Anderson, summed it up in his closing comments: the current Independent Reviewer of Terrorism Legislation, Jonathan Hall, has been consulted on this amendment and agrees that it would be a suitable way forward. I look forward to the Minister’s response.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for making that clear. It will have an impact on the way we address this whole group, because it is a very extensive group and many different groups from different sections of society have contacted us all, I suspect, and raised their concerns. I have been contacted by groups from business, the legal profession, universities and political parties. Some 400 NGOs have written to me, as I am sure they have to other noble Lords.

My Amendment 88, also in the name of the noble Lord, Lord Wallace of Saltaire, would ensure that guidance is provided on the foreign influence registration scheme. Other noble Lords have gone into more specific concerns and explorations of what particular definitions might mean.

I thought it might be most helpful in opening this group, in a sense, to raise two particularly powerful concerns that have been raised with me. I want to cite two groups that have contacted me. The first is the company AstraZeneca, which sent around an email that I thought it worth citing to show this company’s concerns, which illustrate other, wider concerns. It said:

“Clause 70, as drafted would, we believe, impose a requirement for persons in our overseas operations to register each and every dealing with not just Members of the UK Government … but also in Government Agencies such as the Medicines and Healthcare Products Regulatory Agency, The National Institute for Clinical Excellence, The Environment Agency and others where we have regular contact”


on medical issues. AstraZeneca is asking a very profound question about how far these requirements will go and how much impact they will have on its day-to-day business. The email goes much further, but that is the gist of the concern raised.

The other group that emailed me is the Law Society. Of course, all these groups, including the Opposition, support the broad aims of the registration scheme but are concerned about the practical impact and whether it will have a cooling effect on their ability to conduct their existing business. The Law Society email says:

“The Law Society supports the Government’s ambition to protect national security and ensure public safety. However, we are concerned that the proposals in this Bill could have serious implications for access to justice … Law Society members have shared significant concerns with us about the potential impacts of FIRS more generally. These include concerns … that the scheme risks damaging the UK’s largest exporting industry (financial and professional services) and its reputation as one of the world’s most attractive jurisdictions for cross-border business and trade and destinations for foreign investment.”


I have given just two examples, but there are many others. This whole scheme has raised a lot of questions in other sectors; we have heard about political parties and universities. I look forward to this being a wide-ranging debate and the noble Lord giving as full an answer as he can in summing up, but I am grateful for his confirmation that the policy will be available before Report so that, if we choose to, we will have ample time to take matters further.

[Lord Anderson of Ipswich (CB)]

My Lords, while I very much welcome the fact that this policy is under review, I hope your Lordships will agree, in view of the great interest that has been expressed in this subject outside this place, that we take the opportunity to express, at least in summary, the very grave concerns that some of us have about this part of the Bill.

In that spirit, I shall speak briefly to the five stand part notices in my name, signed also by my noble friend Lord Carlile, the noble Lord, Lord Wallace, and the noble Baroness, Lady Hayter. They would leave intact the enhanced tier, which I believe to be of real value for our national security, but if carried they would remove Clauses 66 to 70, the so-called primary tier of FIRS.

--- Later in debate ---

We have heard the concerns raised about the burdens for business that FIRS may create. The UK is and, we believe, will remain one of the best places in the world to do business. It is important to be clear that this scheme is not about obstructing or stifling the legitimate influence activities of businesses. It is there to encourage openness and transparency where activities are undertaken to influence the UK political system. We have deliberately designed the scheme to minimise the compliance burden for those falling within the scope of the requirements.

[Lord Anderson of Ipswich (CB)]

I am very grateful to the Minister. He has just mentioned for the second time the compliance burden. Earlier on, he said very reassuringly that all that would be required to register was the completion of a form. But does the Minister understand that one reason why so many people are so anxious about these provisions is that it is not simply a question of filling in a form? In addition, once you have done that, there is the ongoing and, apparently, permanent obligation to comply with any information notices, which can be given at any time, requiring information of any sort to be provided to the Government. This is against the background of an absence of statutory guarantees regarding confidential information, except for lawyers and journalists, and not even—I think I am right in saying—any indication in the Bill as to whether this register will be public. The Minister has spoken a great deal about transparency.

How is that consistent with a United Kingdom that welcomes foreign engagement? Can the Minister understand how reluctant responsible directors and trustees will be to advise engagement with United Kingdom Government authorities against the background of those potentially very onerous provisions, which are liable to cause administrative problems and render it impossible for them to keep private what is always intended to be private?

[Lord Sharpe of Epsom (Con)]

I reassure the noble Lord that the Minister absolutely understands exactly where he is coming from. I will come on to the confidentiality aspects of the question he just asked in a second.

The process will require information about those party to an arrangement, as well as a description of the arrangements and activities to be undertaken. We would not expect a detailed account of every activity to be undertaken either as part of an arrangement or by a foreign principal, but the full process will be set out in regulations, which will be laid before Parliament.

National Security Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Evans of Weardale (CB)]

My Lords, I listened with great interest to the argument made by the noble Lord, Lord Purvis of Tweed. I wonder whether I could ask the Minister, when he replies, to clarify the way in which the liabilities and immunities under this clause might impact, separately, the members of the intelligence services and the Armed Forces on the one hand, and, on the other hand, covert human intelligence sources, sometimes known as “agents” of the intelligence services, whose activities are authorised, I believe, under separate legislation. It does seem to me that it is very important that we should understand those two separate categories of action, and the way in which the proposed legislation would impact on those, because we are talking there about different legal regimes—although I speak as a lawyer and therefore I am willing to be corrected.

[Lord Anderson of Ipswich (CB)]

My Lords, that sounds right to me. Part 2 of the Serious Crime Act 2007 abolished the common-law offence of incitement and substituted three specific offences of encouraging and assisting serious crime. Schedule 4 expands the reach of Part 2 to the encouragement and assistance of crimes which are committed, or intended to be committed, abroad. Its provisions have been described by the Court of Appeal as “tortuous”. Professor David Ormerod, the former Law Commissioner, has written of its “incoherence” and “excessive breadth of liability”. The noble and learned Lord, Lord Judge, probably has a full and comprehensive understanding of it, but few lawyers and judges do, and even fewer can explain it to juries. It has, accordingly, rarely been used.

Intelligence officials—from what they have told the noble Lord, Lord Carlile, and me—share in the general bafflement. They cite the risk that they will be prosecuted for acts which are judged, in retrospect, to have been capable of encouraging or assisting the commission of an offence by a foreign intelligence partner. They take only limited comfort from the defence of acting reasonably in Section 50, and from the public interest test applied by prosecutors. The uncertainty, they say, prompts them to act with caution so significant as to have an operational impact.

Clause 28 proposes to address the situation by granting immunity from prosecution, in transnational cases, to those who are behaving in a way that is necessary to

“the proper exercise of any function”

of MI5, MI6 or GCHQ. No clue is given in the Bill as to how this test is to be applied. Compliance with the principles relating to the passing and receipt of intelligence relating to detainees, to which reference has just been made, would doubtless provide the answer in many cases but, as has also been said, there will be others that fall outside their scope.

The same broad immunity would be granted to members of the Armed Forces, not only for activities in support of the intelligence agencies but for any activities which constitute a “proper exercise” of the functions of the Armed Forces—whatever that means. No one has so far explained to me why such a broad immunity for the Armed Forces is necessary, even in circumstances with no intelligence connection. I hope the Minister will be in a position to do so.

I understand that the Intelligence and Security Committee of Parliament has been invited to scrutinise the justification for the claimed special treatment. I expect that it will have been shown operational examples that the noble Lord, Lord Carlile, and I, during our relatively short visit, were not. I hope that, before the Bill advances further, the committee will tell us what, if anything, it has concluded and whether those conclusions are confined to the agencies or whether they extend to the Armed Forces as well. For my part, I have general sympathy with the concerns expressed to me by agency lawyers—who are, in my experience, highly conscientious people—but, like the noble Lord, Lord Purvis, I would feel happier if I knew that an independent person or body, such as the Intelligence and Security Committee or the Independent Reviewer of Terrorism Legislation, had examined the secret materials and pronounced confidently on whether the concerns expressed to us are justified across the full range of circumstances in which they are being advanced.

However, let us assume, at least for the purposes of this debate, that there is a real problem of unquantifiable legal risk translating into excessive caution and reduced operational efficiency. Is the solution to place the agencies and the Armed Forces above the law? The question surely needs only to be asked for the answer to be apparent. We admire our intelligence and military personnel, with very good reason, but, be they never so high, the law in a democracy must always be above them. Modern intelligence co-operation means dealing with a wide range of international partners, some of them less scrupulous than others. Let there be no doubt that the crimes that some of them are capable of committing include some of the most serious of all: torture and unlawful killing. To remove all legal accountability for assisting and encouraging such acts, in particular by the sharing of intelligence, would send an unfortunate message to any person who might be tempted to cross the line. It would also send an appalling signal to the rest of the world.

Fortunately, two off-the-shelf solutions are available, each of them more palatable than Clause 28. The first is my Amendment 64, supported by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Judge. This would add activities caught by Part 2 to the scheme established by Section 7 of the Intelligence Services Act 1994—sometimes known as the “James Bond clause”, which the noble Lord, Lord Purvis, described, although it is certainly no simple immunity. Subject to further study of what he said, I do not think it does the trick without our amendment. Section 7 provides that those operating abroad, and in limited circumstances within the United Kingdom, are not liable for what would otherwise be crimes under UK law, but only if the commission of such crimes falls within the scope of an authorisation issued by the Secretary of State on tightly defined statutory grounds. Those authorisations, and the agencies’ compliance with them, are carefully scrutinised by the senior judges of the Investigatory Powers Commissioner’s Office—the successors of the noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood—with the help of their skilled investigative teams. IPCO publishes its conclusions in its annual report, which demonstrates its exacting approach. The Investigatory Powers Commissioner, Sir Brian Leveson, would no doubt notify the Director of Public Prosecutions were it to find any illegality worthy of further investigation.

In this way, the requirements of the rule of law are maintained, and with three other advantages. First, and of some importance, IPCO scrutiny makes it more likely that any wrongdoing will actually come to light. Secondly, the agencies would not be exposed to police or prosecutorial investigations, unless, of course, they go beyond the scope of their authorisations. Thirdly, for any act within the scope of the authorisation the agencies have political cover from the Secretary of State, who would be unable to hang them out to dry. There would be some value in each of those matters, I would have thought, for the agencies themselves.

Like the existing Section 7, my solution would also apply to the Armed Forces to the extent that their actions are necessary for the proper discharge of a function of the security and intelligence agencies. Perhaps that limited application is all that the Armed Forces actually require, and I await the Minister’s comments on that.